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The New York Court of Appeals noted in Kass v. Kass that “[a]s science races ahead, it leaves in its trail mind-numbing ethical and legal questions.” The number of infertile couples, as well as the number of couples postponing reproduction until later in life, continues to expand at an unprecedented rate. This combination of increased infertility and postponement of reproduction has led to the growing use and acceptance of assisted reproductive technologies (ART). Couples are opting to use various forms of ART, including in vitro fertilization (IVF), to assist them in conceiving. IVF involves stimulating a woman’s ovaries to produce additional eggs, removing those eggs from the woman’s uterus, fertilizing the eggs with sperm in a clinic or laboratory, allowing the fertilized eggs to mature into pre-embryos, and transferring the developing embryo(s) into the uterus of the would-be mother. Excess embryos produced in this process are cryogenically preserved. Estimates reveal that as of 2003 approximately 400,000 cryogenically preserved embryos existed in the United States alone.
Although couples are increasingly turning to alternative means to reproduce, the divorce rate in the United States remains high. The increased use of IVF in conjunction with this high divorce rate will likely result in increased litigation regarding the disposition of excess cryogenically preserved embryos. Unfortunately, the laws regarding reproductive technology, at both the state and federal levels, have not kept pace with advances in reproductive science. As a result, judges are left to make difficult decisions regarding the disposition of embryos with little guidance. To date, no court in the United States has “forced parenthood”; no court has permitted any litigant to use or donate an embryo when the opposing party, whose sperm or egg created the embryo, objected. The courts in these cases base their holdings on the tenet that, when they conflict, the right not to procreate prevails over the right to procreate. . . .